Renting. Rental Q&A.

New Tenants Add Extra Lodger

November 07, 1997|By Robert A. Boron. Special to the Tribune.

Q--I rented an apartment to a couple of tenants and they have allowed a third tenant to move in without my permission. Since I have someone else collecting the rent checks for me, and since I just learned of the presence of the third person, I don't know if he has paid any portion of the rent directly.

The lease states that the tenants cannot sublet the apartment without my consent. Can I evict either the one tenant or all of the tenants for violating this lease provision?

A--The answer depends on many factors, including whether or not the apartment is subject to the City of Chicago Residential Landlord and Tenant Ordinance.

If you or your agent has collected any portion of the rent from the third occupant, then you might not be able to declare a default under the lease. If a portion of the rent was paid by that third person, then the person is not concealing his involvement in the apartment, and your acceptance of the rent, even if through your agent, might be found to be an acknowledgement and acceptance of that person's presence. You are bound by the acts of your agent, and if the agent has accepted the rent, then you are probably unable to deny the acceptance of that rent, and of that occupant.

The next question is whether that person's occupancy creates a problem, besides the fact that he is simply there. For example, if the presence of that third person violates clearly-stated occupancy standards for that apartment, or violates a municipal occupancy code, then there might be grounds for a default under the lease. However, if you haven't specifically stated those standards in the lease, have no specific limit as to the number of persons allowed to live in the apartment, and there is no ordinance violation, you probably will have problems declaring a default. If you are unable to show any actual harm, and you cannot demonstrate a violation of a clearly-stated occupancy standard, a judge may not grant you an eviction order.

The next question is whether the apartment involved is governed by the City of Chicago Residential Landlord and Tenant Ordinance. That ordinance provides that the landlord cannot unreasonably prevent subletting of the apartment. If the apartment is governed by the ordinance, you probably would have to show some legitimate business reason why the third tenant should not be allowed to live in the apartment.

Assuming you are able to get past those hurdles, and can justify defaulting the tenants as a result of the occupancy of the third person, you probably will not be able to take any action against the third occupant alone. Your contract is with the original two tenants and their obligations under the lease are still limited to them. Because the third occupant never signed the lease, there is no contractual relationship with you that can be enforced to remove only him from the apartment. Since the third occupant is a subtenant, his contract is with the two original tenants.

If you are going to take any action, however, you must take it against all three parties. If you can prove a violation of the lease, then you must proceed on that violation against the lease signatories, and then add the third occupant solely to obtain a judgment for possession against him.

As a practical matter, only by obtaining a judgment against all three can you have them evicted from the apartment. The sheriff who eventually comes out to evict the tenants will not effect the eviction if he has to try to determine whose property is to be evicted and whose property is to remain.

Q--I own a larger apartment building in Chicago. One tenant has been late several times in paying the rent. Frankly, I'm tired of accepting the late rent payments and I want the five-day notice to stick, so that I can evict him. If the tenant is late again, I don't want to accept the rent and I want to evict him. Can I do that?

A--The vital question is when is the rent paid. Under the City of Chicago Residential Ordinance, to which your building is subject, a tenant has the right to receive a five-day notice in the event of nonpayment of rent.

The purpose of a five-day notice is to provide a final right for the tenant to pay the rent. So long as the tenant pays the rent demanded, or the rent that is actually owed, within the five-day period, the landlord is obligated to accept that rent and to reinstate the tenancy in good standing. If the tenant does not pay the appropriate rent within the five-day period, the landlord is not obligated to accept that rent, even if it is paid in full.

Under the circumstances, despite the frequent late payments, if the tenant pays the rent within the five-day period under the notice, you must accept the rent and retain the tenant.

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Robert A. Boron, a Chicago attorney who specializes in leasing matters, writes about landlord and tenant issues for the Tribune. Questions to him can be addressed to Rental Q&A, Your Place section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. He also can be reached by e-mail at rabltd@aol.com. Sorry, but he cannot make personal replies.